Obama Has Given America A Government Of Unchecked Power While Taking Away Liberty

Barack Obama said he wanted to transform America and in many ways he has succeeded.

The problem is that his transformation has done enormous and perhaps irreparable damage to the nation by demolishing the people’s confidence that our laws will be impartially enforced. Instead of, as the Constitution requires of the president, taking care that the laws be faithfully executed, Obama and his minions have operated under a completely different concept – that the laws will be enforced (or not) with the objective of maintaining the incumbent party in power.

If you doubt that, I recommend reading Liberty’s Nemesis, published earlier this year by Encounter Books.

Editors Dean Reuter and John Yoo have collected there twenty-six excellent essays to make the big point that the Constitution’s carefully wrought system of divided power and checks and balances meant to protect against the dangerous concentration of governmental power has been so weakened that it now barely functions.

We face, as the book’s subtitle puts it, the unchecked expansion of the state. That unchecked power did not begin with Obama, but his administration has pushed us far into uncharted waters of uncontrolled executive power. As a result, the people’s liberty has taken a beating and the old concept of the rule of law has become a bad joke.

Readers will probably be at least somewhat familiar with most of the topics covered, including the legerdemain of Obamacare, the administration’s efforts to prevent people from acquiring guns and ammunition, the unprecedented aggression of the National Labor Relations Board in pushing unionism, Operation Choke Point’s illegal strangling of lawful businesses through abusive banking regulation, interference in state voting laws where it helps Democrats, the IRS’s targeting of groups that oppose Obama’s agenda, the funneling of settlement money into left-wing activist organizations, and much more.

Seeing all of those usurpations of power and perversions of the rule of law discussed in one place gives one a heightened sense of anxiety over the nation’s future. Are we past the point of no return?

In his introduction, Reuter maintains that we are “dangerously near a tipping point” in that the balance of power is so eroded that the very concept may be irretrievably lost. Preserving that concept, he writes, “requires a certain faithfulness by all.”

Unfortunately, most leftist politicians today do not act in good faith toward the document they are sworn to uphold. The balance of power inhibits them because it makes governing slow and deliberate, requiring compromise and the willingness to take “no” for an answer. But they’re impatient to get things done and happy with the breezy idea expressed by Democratic consultant Paul Begala, “Stroke of the pen – law of the land. Kind of cool.” That, however, is not how our government was supposed to work.

It isn’t possible to do justice to each of these meaty essays here. I will concentrate just on a few that exemplify the extraordinary overreach of the Obama administration.

Consider the Second Amendment. The Left loathes the idea that citizens have the right to keep and bear arms and has engaged in an ugly campaign against it. In his contribution, former House member Bob Barr details the non-legislative, extra-legal means employed by the Obama administration to undermine that right.

One of them was “Operation Fast and Furious,” a gambit undertaken by the Department of Justice to sell firearms to Mexican drug cartel figures with the intention of demonstrating the supposed need for a greater crackdown on arms sales. Some of the weapons involved in this rogue plan were used in the gun battle that cost a border patrol agent his life in 2010. But when Congress investigated and sought information about Fast and Furious, Attorney General Eric Holder refused to turn over documents and was then held in contempt of Congress. That, however, had no impact at all.

Another abuse of power is Operation Choke Point, an illegal program aimed at destroying legitimate businesses that sell guns and ammunition (as well as those in other lines of business that Obama administration officials find unsavory, such as payday lending and coin sales). The way it works is by having the Federal Deposit Insurance Corporation pressure banks into refusing to continue to deal with these kinds of businesses because they are “high risk,” as declared by the administration. No law authorizes this ideological vendetta against legitimate businesses and when Congress looked into it, the response from Attorney General Lynch was merely a promise to “look into it.”

Another instance where executive department bureaucrats simply made up the law to suit their whims (and push a useful political narrative) is the Education Department’s imposition of standards for the way colleges and universities must handle cases where sexual assault has been alleged. No statute gives it that authority, but under its “interpretation” of the law and a rule promulgated without adhering to the Administrative Procedure Act, Department officials decreed that colleges must follow their dictates.

In their essay on this, Greg Lukianoff and Samantha Harris of the Foundation for Individual Rights in Education show how the vague language of Title IX of the Education Amendments of 1972 has been twisted to mean not just that schools receiving federal student aid money cannot discriminate against women (the statute’s clear intention) but to give the Education Department carte blanche to dictate every aspect of school policy having anything to do with sex. Under the Department’s “guidance letter” in 2011, colleges risk the loss of government funds unless they do their utmost to prevent and punish all conduct that might be deemed “harassment.”

This has First Amendment implications, the authors note: “If a listener takes offense to sex- or gender-related speech for any reason, no matter how irrationally or unreasonably, the speaker has engaged in sexual harassment.” So we now have college officials frantically monitoring for speech that might lead to an investigation by federal bureaucrats.

Moreover, a substantial number of male students have been punished or expelled as a result of the blatantly one-sided procedures demanded by the Department. Thus, both free speech and due process of law have become victims of the Education Department’s overreaching officials.

Just as bad as the executive branch making up new laws on its own the instances where it neglects to enforce laws it decides don’t fit with its agenda.

Several of the essays deal with that problem, including the administration’s decisions not to defend the Defense of Marriage Act when it was challenged in court, to ignore the law on the deportation of illegal immigrants, and to turn a blind eye to the law requiring states to clean up their voter lists. Since the first two of those are fairly well known, I’ll focus on the last of them.

In his essay, “Unilateral Actions of President Obama in Voting and Elections,” Heritage Foundation legal scholar Hans von Spakovsky examines the various ways the Obama administration has intervened to improve the chances that Democratic candidates will win. This has been accomplished through litigation to block state efforts at making their elections less prone to fraud and by ignoring existing laws when enforcing them would work against Democratic prospects.

Particularly important here is the 1993 National Voter Registration Act, which requires the states to undertake “a reasonable effort to remove the names of ineligible voters from official lists.” There is evidence that in many if not most states, the rolls are laden with the names of people who have died or moved away. Inaccurate lists make vote fraud much easier.

But the Obama administration has chosen to ignore this law, a Justice Department official calling it “uncongenial” because it doesn’t fit in with the political goal of increasing voter turnout. Imagine the outcry if a Republican administration had ever decided not to enforce, say, the National Labor Relations Act on the grounds that it was “uncongenial” with its goal of increasing economic growth.

Similarly, von Spakovsky reports, the administration was not interested in pursuing any cases of voter suppression and intimidation when done by Democrats, such as the Black Panther Party toughs who patrolled Philadelphia precincts to frighten away white voters and blatant discrimination against whites in Noxubee County, Mississippi.

Von Spakovsky sums up, writing “What appears clear is that the administration has misused its authority under various federal voting rights laws to advance its own ideological agenda, and to help ensure the election of candidates of the president’s political party. This is an abuse of executive power delegated to the president by the Constitution to “take Care that the Laws be faithfully executed.’…This administration has failed that obligation.”

Indeed so. When a political leader decides not to enforce the laws impartially, but instead to pick and choose which ones to enforce for partisan advantage, a crucial element of democracy’s social contract has been violated.

John Yoo closes the book with a sobering conclusion. The administrative state that was supposed to make everything more efficient has merely “eased the way for special interests,” since they need only to capture the heads of federal agencies rather than the far more difficult task for persuading majorities in both the House and Senate to adopt whatever policies they desire. There is no “consent of the governed” when the laws are made and enforced by unaccountable bureaucrats.

What is to be done?

Professor Yoo argues that it is time to “disable and hobble” the administrative state. He would like to see the courts resuscitate the old “non-delegation doctrine” that used to keep Congress from handing its authority over to agencies. He also wants the courts to abandon their position of deference toward most agency actions and their statutory “interpretations.” And he also favors a conservative offensive to restore the old concepts of individual rights, going so far as to say that the almost universally reviled decision in Lochner v. New York was actually correct in that it protected the worker’s freedom to contract as he thinks best. (See my article on this controversy from February, 2015.)

Those are all good ideas, but the trouble is that the judiciary is mostly in the hands of people who see only good in the administrative state and disdain the idea of individual rights because we are “stronger together” -- as a current political slogan puts it. And the longer the “progressive” grip on Washington continues, the less possible a legal (or electoral) counterattack against it becomes.

Reading Liberty’s Nemesis is like going to see your doctor over what you think is a minor problem, only to get a diagnosis that it is an aggressive, fast-spreading cancer. You might survive it, but the odds aren’t good. The unchecked expansion of the state has ruined many other nations and our case is advancing rapidly.

I am a law school graduate who went into teaching rather than legal practice and then began to see how badly government has mangled education at all levels. Since 1999, I have worked at the John W. Pope Center for Higher Education Policy, a think tank that takes a critical ...